IN RE: DAVOL/C.R. BARD HERNIA MESH MULTI-CASE MANAGEMENT
DAVOL INC. and C. R. BARD INC., Defendants. MICHAEL DUANE NOURSE and CLARA GAIL NOURSE, Plaintiffs,
Plaintiff: Jonathan D. Orent, Esq.
Nugent, Esq. For Defendant Thomas M. Robinson, Esq.
GIBNEY, P.J. JUSTICE/MAGISTRATE.
Davol Inc. and C. R. Bard Inc. (collectively Defendants) move
to dismiss the Complaint of Michael Duane Nourse (Michael
Nourse or Plaintiff) and Clara Gail Nourse (Consortium
Plaintiff) (collectively Plaintiffs) arguing that
Plaintiffs' Complaint is barred by Ohio's applicable
statute of repose. Plaintiffs object arguing the Complaint is
governed by Rhode Island law, under which the action is
timely. This Court exercises jurisdiction pursuant to G.L.
1956 § 8-2-14.
28, 2017, Plaintiffs filed a Complaint in Rhode Island
alleging Michael Nourse was severely and permanently injured
by a 3DMax Mesh (3DMax), a medical device designed,
manufactured, and distributed by Defendants. Plaintiff was
surgically implanted with the 3DMax on September 15, 2005,
during a medical procedure to repair a bilateral inguinal
hernia. The 3DMax was explanted on March 30, 2016, resulting
in physical and mental injuries to the Plaintiff. Plaintiffs
are residents of Ohio, Davol Inc. is a Rhode Island
corporation, and C. R. Bard Inc. is incorporated in the State
of New Jersey.
August 17, 2017, Defendants moved to dismiss the Complaint,
arguing Plaintiffs' claims are barred by Ohio's
applicable statute of repose. Ohio R.C. § 2305.10(C)(1).
Specifically, § 2305.10(C)(1) bars product liability
claims "against the manufacturer or supplier of a
product later than ten years from the date that the product
was delivered to its first purchaser." Defendants argue
that under Rhode Island's choice of law principles, Ohio
law governs the Complaint as Michael Nourse's surgeries
took place in Ohio and Plaintiffs are Ohio residents.
Plaintiffs filed the Complaint more than ten years after
Michael Nourse's 3DMax implant surgery (the date at which
Defendants argue the product was "delivered" to
Plaintiff). Therefore, Defendants argue Plaintiffs'
claims are barred by the statute of repose.
object, arguing their claims are timely. Citing this
Court's previous application of Rhode Island law to
factual circumstances similar to the within Complaint,
Plaintiffs argue Rhode Island is the proper choice of law and
that Ohio's statute of repose is, therefore,
inapplicable. Plaintiffs further argue that even if this
Court applied Ohio law, their claims survive under two
exceptions to the statute of repose: one for actions
involving fraud, and the other for actions alleging product
liability involving medical devices. Ohio R.C. §§
2305.10(C)(2) and 2305.10(C)(7)(a).
Standard of Review
well-settled that the sole function of a motion to dismiss is
to test the sufficiency of the complaint. Ryan v. State,
Dep't of Transp., 420 A.2d 841, 842 (R.I. 1980);
Dutson v. Nationwide Mut. Ins. Co., 119 R.I. 801,
803-04, 383 A.2d 597, 599 (1978). '"When ruling on a
Rule 12(b)(6) motion, the trial justice must look no further
than the complaint, assume that all allegations in the
complaint are true, and resolve any doubts in a
plaintiff's favor."' Estate of Sherman v.
Almeida, 747 A.2d 470, 473 (R.I. 2000) (quoting R.I.
Affiliate, Am. Civ. Liberties Union, Inc. v. Bernasconi,
557 A.2d 1232 (R.I. 1989)). A motion to dismiss "may not
be granted unless it 'appears beyond a reasonable doubt
that a plaintiff would not be entitled to any relief under
any conceivable set of facts which might be proven in support
of his claims.'" City of Warwick v. Aptt,
497 A.2d 721, 723 (R.I. 1985) (quoting Ryan, 420
A.2d at 843).
and Defendants disagree as to whether Rhode Island or Ohio is
the proper choice of law. If Ohio law applies, this Court
must determine whether the ten-year statute of repose bars
Plaintiffs' Complaint. Sec. 2305.10(C)(1). If Rhode
Island law is applicable, this Court must deny
Defendant's motion to dismiss as the comparable statute
of repose enacted by the Rhode Island legislature has been
found unconstitutional by the Supreme Court. See Kennedy
v. Cumberland Eng'g Co., Inc., 471 A.2d 195, 201
(R.I. 1984) (holding that G.L. 1956 § 9-1-13(b), which
sets forth a statute of repose that bars products liability
actions brought more than ten years from the date of purchase
of the product, is inconsistent with art. I, sec. 5 of the
Rhode Island Constitution).